November 15th, 2013

Divorce between two parties with children is emotionally, and often financially, difficult. Divorce can involve many legal aspects: worrying about visitation rights – now known as ‘parenting time’ – alimony considerations, custody battles and other issues. These matters are further complicated if there is evidence of mental health issues which may have contributed to the marriage dissolution. In order to make divorce proceedings run as smooth as possible – for everyone, especially the children – it’s best to get a little education on what help is available to couples.

Difficulties Within a Marriage

First, if you’re experiencing difficulties within your marriage there are many steps to try before deciding on traumatic, and often costly, divorce proceedings. It’s probably worthwhile attending marriage counseling or family therapy before making any life-changing decisions, especially if children are part of those decisions.
If ultimately, however, both parties view divorce as the best solution there are considerations relating specifically to mental health issues and their impact on divorce proceedings.

Mental Health Issues

If one parent is suffering from a mental health issue, it’s imperative that the other parent is fully aware of this, and as supportive as possible, regardless of marriage status. There is help for mental illness available, whether that help comes in the form of therapy, educational resources for yourself or someone you know who is suffering, or information about paying for healthcare.

Postpartum Depression

Increasingly, postpartum depression is recognized as playing a role in modern marriages – and sadly, therefore, as playing a role in modern divorces. Postpartum depression is thankfully recognized nowadays as a debilitating mental health issue that can range from feelings of low self-esteem and mild depressive feelings to full-blown psychoses. Additionally, there is lots of information online offering assistance on how to spot warning signs, what help is available if symptoms present themselves, and how to cope with postpartum depression. However, the pressures of living with such a problem can strain a marriage to the point of divorce. If a marriage reaches this point – and if both parties agree – it would probably be best to proceed on no-fault divorce grounds. This should probably mean less legal intervention which tends to keep the costs down and also alleviates the possibility for animosity between parties – particularly important where children and mental health issues are involved.

Fathers’ Custody Rights

In New York, fathers are entitled to equal rights regarding custody and visitation with their children but it can sometimes seem like an uphill struggle, so fathers’ rights lawyers are now available to best put forward the fathers’ rights and wishes in court. In cases where the father has reason to be concerned about the well-being of his children – in a mental health case, for example – the law is tricky. For example, postpartum depression (which is far more common than most people realize with 1.3 million women suffering from it per year) is still fairly new as a consideration in custody proceedings. What remains clear is that many women are concerned to seek mental health services for fear that they may lose custody of their children, whether this fear is unfounded or not. But women must come forward so that proper analysis can take place – to ensure that postpartum depression is diagnosed and helped, rather than mistakenly treated as a longer-term and more extreme mental health problem. Not that postpartum isn’t serious: there have been unpleasant cases in the news whereby mothers have injured or killed their own children in the grip of postpartum depression.

What Can a Husband Do?

So what happens if a husband has good grounds for believing his children’s well-being may be at risk – does he have the right to request custody on these grounds? And to what extent are mental health issues taken into consideration by the divorce court, anyway? This is an area that needs more attention. At the moment, guidelines for child custody evaluations are available but reasonably vague. The bottom line is that postpartum depression and mental health issues are common factors within marriage difficulties and divorce and custody cases. If you’re suffering – either directly or indirectly, do seek help. The more this area is discussed and analyzed in the courtroom, the better equipped the legal system will be to understand it and deal with it appropriately.

August 21st, 2013

Marriage was originally a way for families to make alliances with each other. In addition, marriages were used to expand the family labor force. Alliances even within families were common. In the Old Testament, Isaac and Jacob married cousins. In many parts of the world, marriage between cousins still is common. This is particularly true in many of the countries of the Middle East.

Monogamy

Today, monogamy is considered the norm for all marriages. However this was not always the case. Polygamy was common throughout ancient history. For many early cultures, if a woman turned out to be infertile a man could take another wife for the purpose of having children. The early Christian church took the position a marriage could be annulled if a woman could not conceive. Monogamy became the standard for marriages in western culture in the ninth century. The Catholic Church is largely responsibly for the elimination of polygamy in western culture.

Promiscuity

In early cultures, promiscuity by men was widely accepted. However, promiscuity by women was considered a serious social taboo.

Religious Or Civil Marriages

In recent history, governments have gotten more involved in regulating marriages through the issuance of marriage licenses. This is now standard in most States in the United States.

Obligations Of Men And Women In Marriages

Only during the past fifty years has the concept of equality between men and woman in marriages gained a level of acceptance. In the past, men’s and women’s roles in marriage were gender based. Women raised the children and the men supported the family.

DOMA And Marriage

The Defense Of Marriage Act (DOMA) defining marriage as a union between a man and a woman was recently struck down by the United States Supreme Court. Now marriage can be defined as a relationship between two people. The world has come a long way!

June 6th, 2013

In 2010, the State Legislature in New York passed laws with regard to temporary spousal maintenance which is more commonly referred to as alimony. Since then, many divorce and family law attorneys as well as Judges have been upset about these new laws. The temporary maintenance formula is intended to provide a greater level of consistency in all awards made by courts, concerning families involved in divorce litigation. The 2010 amendment to the alimony laws in New York was supposed to alleviate concerns high income families had over issues such as one-time bonuses and mortgage payments.

State Legislature Appoints A Commission

After the temporary alimony law was passed in 2010, the State Legislature organized a commission to evaluate the effectiveness of this new law. The commission made a recommendation that the formula for alimony enacted in 2010 should only apply to people earning up to $136,000 per year. In a divorces involving couples with income greater than $136,000, judges would be given discretion to determine what, if any, alimony is to be paid based on a specific set of factors.

The $136,000 threshold was picked by the commission because it works in conjunction with the same threshold amount that is part of the Child Support Standards Act which is enforced in all 50 states.

Uncertainty About Alimony Awards

Divorce lawyers are concerned that changing the law will bring back uncertainty into the process of determining how much, if any, alimony is to be paid in a divorce. Since approximately 85% of all families getting divorced in New York State make under $136,000 the uncertainty will only exist, if it exists, with regard to a small minority of the families involved in divorce litigation.

Equitable Distribution Of Licenses And Degrees

There is a famous Court of Appeals decision in New York in the case of O’Brien vs. O’Brien which basically stated that professional licenses and degrees from universities are property subject to equitable distribution. The manner in which this type of equitable distribution matter is handled today is forensic experts are hired to determine the value of the professional licenses or degrees and the courts give an award of a percentage of said license or degree to the spouse. This principle is called Enhanced Earning Capacity. The commission appointed by the legislature has recommended abolishing this legal precedent. They feel licenses and degrees should not be subject to equitable distribution.

Conclusion

The divorce laws on New York State need to be modified pursuant to the commission’s recommendations. It is now up to the State Legislature to pass these changes to the divorce laws in New York.

March 19th, 2013

New York State Supreme Court Justice, John C. Bivona, recently ruled the estranged spouse of Marley Bishop, the daughter of United States Congressman, Timothy Bishop, did not have any parental rights to visitation because the parties’ son was born before New York passed the Same Sex Marriage Act in 2011.

The Judge ruled Mercedes Counihan did not have legal standing to seek custody or visitation of the parties’ son, who was two years of age. Ms. Counihan’s partner, Marley Bishop, had carried the baby after she had been artificially inseminated. The Judge’s ruling was that the non-biological parent did not have standing to raise the issue of access to the child or assert parenting rights.

Same Sex Marriage In Connecticut in 2009

Bishop and Counihan were married in the State of Connecticut in the year 2009. Both women executed documents related to the in-vitro process. Counihan was present at the birth of the child. Counihan claimed the child referred to her a “Mommy.” Judge Bivona found “neither consent by the birth mother to co-parent the child with the plaintiff nor approval to permit to adoption of the child” existed in the case.

The attorney for Counihan claimed the ruling was “outrageous.” She stated the Courts decision did not take into consideration the fact Counihan appears on the little boy’s birth certificate.

In a statement made after the court’s decision, Counihan said “this is about parents and a little boy and that boy is my son, too. He should not be taken from me and I should not be erased from his life because a marriage fell apart.” She stated her attorney was appealing the court’s decision.

January 11th, 2013

Today Americans communicate billions of times a day through e-mail and text messaging. Today, the most private pieces of information are communicated by using cell phones. Americans often communicate their private information through e-mail and text message. How can we keep these matters private? Do Americans have a right to privacy over their emails and text messages?

David H. Patraeus, the Director Of The Central Intelligence Agency, Couldn’t Keep His Emails Secret

Mr. Patraeus used emails to communicate with his mistress. Unfortunately for Mr. Patraeus, he was caught. Most Americans underestimate how easy it is for third parties to obtain access of their e-mails and text messages. Digital communications can be intercepted. Individuals can hack into your e-mails and text messages and spy on the most important issues involving your life. Today, hacking into the emails and text messages is not that difficult! It happens to Americans all the time. Government agencies have searched and subpoena powers with regard to information maintained on your computer, on your emails, stored on your cloud or maintained in cyberspace. Lawyers in civil litigation can get to virtually all this information through the discovery legal process.

Skeletons In Your Closet

Is there a way to make your e-mails so private that no one will ever find out what is in them? The Fourth Amendment to the United States Constitution deals with search and seizure issues. Police officers and State and Federal investigatory agencies (such as the FBI) need a court order to search your home or where you live. However, the rules concerning searches of emails are not as strong. Under the 1986 Electronic Communications Privacy Act (a Federal statute), Federal agencies do not need a warrant to obtain emails six months old or older. Federal agencies only need to obtain search warrants for emails that are “unopened”.

In 2012, Google reported law enforcement agencies requested data on 16,281 accounts between January and June. Google complied with 90% of these requests!

Encryption Of E-mail Messages

There are encrypting services. GPG is a company that can help you encrypt your e-mails. WICKR, a mobile app, provides a similar service with regard to the encryption of emails. This app can be utilized on smart phones. However, metadata, even for deleted files, remains on the phone’s hard drive. Forensics specialist and hackers can still obtain this information.

Privacy In Emails

The best way to maintain the privacy of your most private thoughts is to never put them in writing.

January 3rd, 2013

Your divorce is over. Does this mean all parenting issues have been resolved? Hopefully, this is true. But life is not static. Children grow older and develop new, unanticipated issues. Parents’ relationships change. Financial situations for both the custodial and non-custodial parent are impacted by employment interruptions, physical problems and sometimes relocation of one of the parents. In addition, even after the parents have worked out everything in the divorce, new decisions will need to be made regarding the children as time goes on.

Parenting Plan

One of the best ways to deal with child custody and visitation issues is to have a specific, detailed parenting plan. Parenting plans provide stability as relationships change and seek to minimize conflicts between the parents.

Co-parenting

Co-parenting arrangements, after the divorce is finalized, requires both parents to put the children’s best interest before their own. The parents must communicate with each other concerning all significant issues involving the children. Both parents should strive to maintain a positive attitude and only say affirmative things about the other parent. Neither parent should bad-mouth the other! The following is a list of factors that should be taken into consideration and be part of a co-parenting plan:

Both parents should make decisions based on what is in the children’s best interest.

Parents should speak to each other either on the phone, by text message or e-mail concerning all significant issues involving the children.

The parents should strive to be flexible and reasonable with the other parent with regard to issues that impact on their children.

Each parent should take into consideration that the other parent’s parenting style may be different than his or hers.

Each parent should avoid questioning their child each time they come back from a visit with the other parent.

Each parent should strive to keep the other parent informed regarding educational, social and athletic activities that the children are involved in.

Conflict avoidance should be the mainstay of the co-parenting relationship.

Peace, Love and Consideration

Peace, love and consideration are the key components of a co-parenting plan. Parents should seek to avoid future arguments, disagreements and hostilities between each other. Both parents should make the love for their children as the central basis of the co-parenting plan. The best interest of the children should always be in both parents’ minds. Co-parenting plans should not be popularity contests between the parents. Children need parents to give them guidance. A parent is not a child’s friend. A parent is the person that has to see to it a child knows the difference between right and wrong. Popularity contests between parents have a negative impact on your child.

About the Author

Elliot S. Schlissel, Esq. is a well-respected matrimonial and family law attorney who has successfully represented parents concerning issues involving divorce, custody, visitation and other related matters. His office offers free initial consultations.

December 28th, 2012

The United States Supreme Court entertained a case on December 5, 2012, involving an international child custody battle. The case, Chafin vs. Chafin, involved a U.S. Army soldier and a Scottish woman. The Chafins were originally married in Scotland. Thereafter, they moved to Germany where Mr. Chafin was deployed by the United States military.

In 2007, the couple had a daughter. She was born in Germany and had dual citizenship. She was both a citizen of the United States and the United Kingdom. Thereafter, Mr. Chafin was redeployed by the United States military to Afghanistan. He stayed there for 15 months. During his deployment, the Chafins agreed that the mother and daughter would return to Scotland. Eventually, Mr. Chafin moved to Alabama and his wife and daughter followed him there in February 2010.

The Chafins’ Divorce

Mr. Chafin filed for divorce and for an emergency custody order in Alabama. As part of the emergency Alabama order, the daughter’s passports were moved to an unknown location. Due to the fact that Mrs. Chafin could not leave the country with her daughter and return to Scotland, she overstayed her visa. This resulted in her being deported in February 2011.

Mrs. Chafin Seeks The Return Of Her Child Under The Hague Convention

Mrs. Chafin filed a petition to have her child returned pursuant to the international obligations countries have under the Hague Convention. A Federal District Court Judge ruled in her favor. He found that Mr. Chafin had wrongfully kept his daughter and had no right to hide her passport. He also found that Scotland was her habitual residence and allowed Mrs. Chafin to return to Scotland with her child.

United States Supreme Court

This case eventually found its way to the United States Supreme Court. The issue before the Supreme Court is whether under the Hague Convention they can order the return of the child to the United States and whether the United States was the habitual residence of the child. This case is still pending!

About The Author

Elliot S. Schlissel, Esq. and his associates have been involved in numerous cases dealing with international custody and visitation issues concerning countries that are signatures to The Hague Convention and countries that are not covered by this convention.

October 11th, 2012

In October 2010, the State Legislature in New York enacted guidelines for calculating temporary spousal maintenance. The purpose of this new statute is to provide consistency in spousal maintenance awards by judges. The temporary maintenance law provides a formula by which the parties to a matrimonial lawsuit can determine what, if any, spousal maintenance is required to be paid on a temporary basis.

Temporary Maintenance Law Does Not Work

The temporary maintenance statute has not accomplished its goal. It has created more problems in divorce proceedings than it has resolved. The statutory formula replaced the prior system of determining temporary spousal maintenance which was based on the Court exercising its discretion after assessing the financial circumstances and the needs of the parties.

The intent of temporary spousal maintenance is to allow the non-moneyed spouse to maintain his or her standard of living that existed prior to the initiation of the divorce lawsuit. The legislature took action to draft a temporary maintenance statute because of the feeling that there was a lack of consistency and predictability by allowing Judges to determine each case on a case by case basis.

Bankrupting The Moneyed Spouse

In to in many cases the writer of this article has been involved with, the application of the temporary maintenance statute has financially ruined the moneyed spouse. This statute unfortunately over emphasizes the wages of the moneyed spouse. It does not take into consideration the financial needs of the parties and their actual living expenses. The formula does not take into consideration the payments for household expenses such as mortgage payments, electric payments, fuel oil, payments for internet service, telephone charges, maintenance of the property, child support and attorney’s fees during the course of litigation. The approach utilized by this statute does not accurately deal with the specific financial obligations and needs of the parties.

Rigid Formula Must Go!

The new maintenance statue needs to be revised. It is a rigid formula that denies the Court from having the necessary discretion to deal with the unique financial circumstances litigants are exposed to. In some situations spouses are receiving interim spousal maintenance awards in cases and at the conclusion, they receive no spousal maintenance. How can this be fair?

July 31st, 2012

When a custodial parent seeks to relocate, he or she may run into more complications and difficulties than he or she anticipates. An order of custody and/or divorce judgment may contain clauses specifically preventing a custodial parent from relocating. Whether the custody order or the divorce judgment contains a clause of this nature, the custodial parent, who seeks to relocate, must bring a proceeding in the State of New York, either in the Supreme Court or in the Family Court. The proceeding will be for the purpose of obtaining a court order authorizing the relocation of the custodial parent.

Good Reasons For Relocating

The application brought by the custodial parent must contain a compelling reason for relocating with the child or children. Some of the reasons that have been alleged in petitions of this nature deal with employment in another locality, it is closer to family members for a support system and opportunities for the children to enhance their education.

The Impact On The Non-Custodial Parent

In most situations, the relocation of the children will have a negative impact on the non-custodial parent’s visitation rights. To compensate, the non-custodial parent is often offered additional parenting time. Additional parenting time can involve summer vacations, school vacations, school recesses and other periods of time when school isn’t in session. In some situations, the parent who seeks to relocate may have the obligation of paying the cost of transportation of the children back to visit with the non-custodial parent.

Courts in the State of New York are reluctant to grant relocation applications due to the negative impact it can have on the other parent’s visitation rights. To be successful in New York it is extremely important to show the relocation will be in the children’s best interest. To accomplish this goal it will be necessary to show how the children’s lives will be enhanced either economically or in another manner.

Present A Plan to the Court

If you seek to relocate it is important to present, in your court petition, a plan for visitation with the non-custodial parent. This plan must show the children will be able to maintain their relationship with the non-custodial parent. Since the party bringing the application will have the burden of proof, it is essential in the proceeding to be represented by an experienced family law attorney who has previously dealt with relocation cases before the local courts in your jurisdiction.

July 30th, 2012

Carl M. Perry had an order of protection against him. This order of protection from the Family Court in Monroe County indicated he was to have no contact with his wife. It further ordered, he was to stay away from his wife.

Justice DiSalvo, sitting in the Webster Town court, dismissed the criminal charges against him. The Justice stated in his decision “changes in technology, including the way people communicate, continue to present unique challenges to the courts. As of the date (April 7th) of this decision there were no reported cases of people charged with violating an order of protection for accessing Facebook. One must look for cases where defendants are charged for indirectly contact a protected person by making statements to others.” The court further held, that there was nothing in the order of protection that prevented him from accessing the Facebook account.

The court held that by communicating with individuals through Facebook he was not either directly or indirectly trying to contact Ms. Perry. The court further stated, the order of protection did not prevent the defendant from having contact with individuals that happen to be listed on Ms. Perry’s Facebook account. It also did not prevent him from having contact with family, friends or acquaintances.

Conclusion

This is a win for Facebook. If you have an order of protection against you can still communicate with third parties through Facebook provided the order of protection doesn’t specifically mention no contact through Facebook accounts.